Citation NR: 9636824
Decision Date: 12/31/96 Archive Date: 01/06/97
DOCKET NO. 94-48 437 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. A. Dowdell, Counsel
INTRODUCTION
The veteran served on active duty from February 1965 to April
1970.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from an August 1994 rating
decision from the Montgomery, Alabama, Regional Office (RO),
which denied service connection for a hearing loss and
tinnitus.
The veteran was afforded a personal hearing before a member
of the Board sitting at the Montgomery, Alabama, RO in
October 1996. The member of the Board who held the hearing
is making the decision in this case and is the signatory to
this decision.
REMAND
The veteran contends, in essence, that he suffers from a
hearing loss and tinnitus as a result of exposure to high
levels of noise in the course of carrying out his duties when
he hauled equipment to airplanes on the flight line during
service.
The Board is of the opinion that additional development of
the medical record is appropriate prior to further appellate
review of this case. The service medical records reveal
that, at the time of examination for entrance into active
service, in February 1965, the clinical evaluation of the
ears was indicated to have been normal. The veteran was
afforded an audiogram in conjunction with his enlistment
examination. The pure tone thresholds were 0, 5, -5, -5 and
-5 decibels for the frequencies of 500, 1,000, 2,000, 3,000
and 4,000 hertz for the right ear, and 0, 0, 5, 0 and 5
decibels at these same frequencies for the left ear. These
readings are all within the normal range of hearing. Hensley
v. Brown, 5 Vet.App. 155 (1993).
The report of the veteran’s separation medical examination
conducted in March 1970 shows that the clinical evaluation of
the ears was indicated to have been normal. On authorized
audiological examination, the pure tone thresholds were 20,
20, 35, 25 and 25 decibels for the frequencies of 500, 1,000,
2,000, 3,000 and 4,000 hertz for the right ear, and 15, 15,
30, 25 and 25 decibels at these same frequencies for the left
ear. These readings denote some element of impaired hearing.
See Hensley, supra.
According to a private audiogram conducted in November 1993,
the pure tone thresholds were 10, 25 and 35 decibels for the
frequencies of 500, 1,000, and 2,000 hertz for the right ear,
and 5, 10 and 30 decibels at these same frequencies for the
left ear. It was indicated that the pure tone thresholds for
the frequencies 3,000 and 4,000 hertz for the right and left
ears had been “deleted.”
The Board observes that the veteran has not been afforded the
benefit of a comprehensive Department of Veterans Affairs
(VA) examination in conjunction with his claims. The VA has
a duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991 &
Supp. 1995); 38 C.F.R. § 3.103(a) (1995). In this regard,
while there may be an element of impaired hearing noted upon
separation from service, it is still not apparent that the
veteran meets the criteria for a hearing loss disability
under 38 C.F.R. § 3.385 (1995). The United States Court of
Veterans Appeals (Court) has held that the "fulfillment of
the statutory duty to assist...includes the conduct of a
thorough and contemporaneous medical examination...." Green
v. Derwinski, 1 Vet.App. 121, 124 (1991). The Board
therefore concludes that a VA examination would provide a
record upon which a fair, equitable, and procedurally correct
decision on the veteran's claims could be rendered. 38
C.F.R. § 3.326 (1995).
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
information about all post service
treatment he has received for any hearing
loss and tinnitus. The RO should then
attempt to obtain copies of all records,
not already included in the claims
folder, referable to any identified
treatment and associate these records
with the veteran’s claims file. Any
authorization necessary for the release
of additional documents shall be obtained
from the veteran.
2. The veteran should be afforded a VA
audiometric examination to determine the
nature and etiology of any ascertainable
hearing loss or tinnitus found to be
present. All indicated tests and studies
should be accomplished, with specific
reference directed to criteria listed
under 38 C.F.R. § 3.385. Clinical
findings should be recorded in detail.
All examinations should contain
diagnoses. The claims folder should be
made available to the examiner for review
before the examination.
After completion of the requested development, the case
should be reviewed by the originating agency. If any
decision remains adverse to the veteran, he and his
representative should be provided a supplemental statement of
the case, and afforded the specified time within which to
respond thereto. Thereafter, the case should be returned to
the Board, if in order. The Board intimates no opinion as to
the ultimate outcome of this case. The veteran need take no
action unless otherwise notified. While regretting the delay
involved in remanding this case, it is felt that to proceed
with a decision on the merits at this time would not
withstand Court scrutiny.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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